State Evidentiary Rule Reform

Legislation which includes an amendment to Alabama Rule of Evidence 702 has been introduced in both the State House and State Senate.  Alabama Senate Bill 293 can be found here. Alabama House Bill 420 can be found here. Concurrently, material in support of a rule change has been submitted to the Supreme Court’s Evidentiary Rules Committee.

The Delaware Supreme Court in the In Re Zantac (Ranitidine) Litigation held that Delaware follows the standard for expert evidence admissibility set forth in amended FRE 702. The Court found that Rule 702 was “amended to clarify the rule without changing its substance” and that 2023 amendments to the federal rule confirm that the “trial courts are required to vigorously exercise their gatekeeping function.” The trial court, like other Delaware courts, cited incorrect standards which presumed the admissibility of expert testimony and allowed experts to testify without applying reliable scientific methodology to reach their conclusions. The Court wrote that “DRE 702 has not been amended at the present time to mirror the 2023 amendments to FRE 702.  But, because the [Federal] Advisory Committee has explained that the 2023 amendments … “only clarified the existing federal standard, we view the committee’s recent guidance as important material to consider in reviewing our trial courts’ decision and providing guidance to litigants.”

LCJ’s amicus brief, prepared by Raffi Melkonian, with Wright Close & Barger LLP, urged the Delaware Supreme Court to interpret DRE 702 consistent with amended FRE 702 and addressed in detail the clarification to FRE 702 adopted by the Federal Courts.

Delaware Supreme Court decision

LCJ amicus brief

The Florida State Bar is considering recommendations to the legislature regarding changes to the Florida Code of Evidence.   Lawyers for Civil Justice submitted briefing materials to the Bar in support of maintaining consistency on state expert evidence admission rules and amended FRE 702.  If you are interested in participating in the working group supporting amended expert evidence rules in Florida, please contact Dan Steen at dsteen@lfcj.com.

A change to Georgia’s expert evidence admission standards to make them consistent with FRE 702 requires legislative action adopting the change. A working group has been formed in support of a change to the state code of evidence. Please contact Dan Steen at dsteen@lfcj.com if you are interested in being added to this working group.

A working group has been formed to consider potential amendments to the Illinois expert evidence statute, Illinois Rule of Evidence 702.  For more details on how to participate in the working group, please contact LCJ Executive Director Dan Steen, Dsteen@lfcj.com, or Elizabeth Chiarello at Sidley Austin LLP, EChiarello@Sidley.com.

The Indiana Supreme Court has the authority to amend and rescind rules of practice and procedure and its Committee on Rules of Practice and Procedure also serves as the State’s Evidence Rules Review Committee.  A working group, led by Joe Eaton (Barnes & Thornburg) has been formed to prepare a proposed rule change to the Committee.  If you are interested in participating in the working group to support the amendment, please contact Dan Steen at DSteen@lfcj.com.

The Kentucky Supreme Court on June 24 approved an amendment to KRE 702 to make it essentially identical to amended FRE 702. This action followed an order by the Kentucky Supreme Court ordering a public comment period to run through April 15, coinciding with mandated state legislature review.  All comments received by the Court were in support.   The Kentucky Supreme Court also held a listening session on this and other rule changes at the Kentucky Bar Convention on May 9.  The rule, attached here, is effective on July 1, 2024.

David Schaefer, with Dinsmore & Shohl in Louisville, made the initial presentation in support of amending KRE 702 in the summer of 2023 and led advocacy efforts leading to the adoption of the amendment.  The Kentucky Defense Counsel, joined by the DRI, IADC, FDCC, ADTA, and LCJ, submitted a public comment on April 11, 2024, in support of the rule change. See the Comment here.

Lloyd “Sonny” Shields (Irwin Fritchie Urquhart Moore & Daniels, LLC), a member of the Louisiana Law Institute Civil Procedure Committee, presented a proposed rule amendment to Committee to bring Louisiana Code of Evidence Article 702 into alignment with the amended federal rule. The Committee recommended and the Louisiana Supreme Court approved the amendment.   The rule change was referred to the Louisiana State Legislature for approval.  Senate Bill 16 was introduced by Senator Pressley on February 25 on the recommendation of the Institute, It codifies the amendment as part of the Louisiana Code of Evidence effective August 1. Following consideration by the Senate Judiciary Committee, the bill was adopted by the Louisiana Senate by a vote of 38-0.

View the text of the legislation here.

The Louisiana House passed SB 16 by a vote of 90-0 on May 13.

The bill implementing the amended expert evidence rule was signed into law by Louisiana’s Governor on May 21.  The rule change becomes effective on August 1.   Louisiana becomes the third state, joining Arizona and Michigan, to adopt the federal rule change.

For additional information on the legislation, contact Dan Steen (Lawyers for Civil Justice), or Taylor Brett (Adams & Reese). For additional information on the legislation, contact Dan Steen (Lawyers for Civil Justice), or Taylor Brett (Adams & Reese).

Following public comment that closed on March 5, the Maryland Supreme Court without elaboration rejected the proposal of the state’s Standing Committee on Rules of Practice and Procedure to amend Maryland Rule of Evidence 5-702. The Supreme Court’s order is found here. LCJ’s comment in support of the rule change can be found here.

Mississippi Evidence Rule 702 is aligned with the current federal evidentiary standards on expert evidence. A proposed amendment to MRE 702 seeks to maintain the consistency between the state rule and FRE 702. The letter proposing the amendment to the State’s Supreme Court Advisory Committee on Rules by Chris Maddux, William Gage, Rod Richmond, Tim Threadgill, and Phillip Sykes, all with the Butler Snow firm, highlights that “Mississippi … has followed the federal standards for the admissibility of expert witness testimony for more than 20 years.” The Butler Snow lawyers argue the “changes are critical to ensuring that courts fulfill their gatekeeping obligations.” To read the full letter, click here. The Committee has not yet scheduled consideration of the proposal and a timetable for action is not set. For more information, contact William Gage at William.Gage@butlersnow.com or Dan Steen at DSteen@lfcj.com.

Missouri legislation, introduced earlier this year, would bring the language of the state’s expert evidence admission standards into alignment with amended Federal Rule of Evidence 702, which clarifies that it is the role of trial courts to evaluate expert testimony before it is admitted in a case. House Bill No. 263, introduced by Rep. Barry Hovis, and Senate Bill No. 238, introduced by Senator Jamie Burger, clarify that under Missouri law, the proponent of expert evidence has the burden of proving admissibility and the judge in a case should evaluate the reliability and appropriateness of any expert testimony before it is put before a jury.  The legislation received a favorable reception in committee and will be reintroduced in 2026.

The Missouri Organization of Defense Lawyers (MODL) has endorsed the legislation and is leading state efforts on behalf of the bill. MODL has been joined by a growing group of bar, business, and civic organizations in advocating for the legislation. Mark Dunn, general counsel with the Midwest Sterilization Corporation, leads the state working group which developed the proposed rule change, and which continuing its work to educate legislators.

Separately, the Missouri Supreme Court is now considering an appeal which addresses the admission requirements for expert testimony under the state’s current expert evidence rule.  Lawyers for Civil Justice filed an amicus brief in Hanshaw v. Crown Equipment Corporation which urges the Court to affirm that the state’s current expert evidence rule has the same admissibility requirements as those stated in FRE 702, which was recently amended to clarify that trial courts have the responsibility for evaluating proffered expert evidence for admissibility.  In its brief, LCJ cites the Delaware Supreme Court’s decision in the In Re Zantac (Ranitidine) Litigation, which held that FRE 702 was “amended to clarify the rule without changing its substance.”   LCJ’s brief can be found here.

For more information on the continuing legislative effort, contact Brian Bernskoetter, with RJ Scherr & Associates, or Mark Dunn.  If you are interested in joining the advocacy initiative in Missouri or those of other states, contact Dan Steen at DSteen@lfcj.com.

The New Jersey Defense Association has filed a letter requesting an amendment to New Jersey Rule of Evidence 702 to clarify existing New Jersey law on admissibility of expert testimony and the gatekeeping role of judges. The letter, found here, was filed with the New Jersey Rules of Evidence Committee, and asked for the formation of a subcommittee to consider the proposed amendment. The New Jersey Defense Association is led by Katelyn Cutinello, a partner at Cocca & Cutinello in Morristown. A state working group formed in support of the amendment is led by Tim Freeman, who is a partner with Tannenbaum Keale in Newark. Tim is a member of the Board of the NJDA and helps lead the advocacy efforts of Lawyers for Civil Justice on this and other issues. If you are interested in participating in the working group, please contact Tim at tfreeman@tktrial.com.

North Carolina Supreme Court decisions have followed the prior federal rule.  A working group has been formed in support of rule amendment.  Please contact LCJ Executive Director Dan Steen, Dsteen@lfcj.com, or Aulica Monroe, with Womble Bond Dickinson, Aulica.monroe@wbd-us.com, for more information.

A working group has been formed to consider Pennsylvania’s expert evidence admission standards. If you are interested in participating in the working group, please contact LCJ Executive Director Dan Steen at Dsteen@lfcj.com, or FDCC President Bernie Heinze at bernie@thefederation.org.

A working group has been formed in support of an amendment to Tennessee Rule of Evidence 702.  LCJ is working with the Tennessee Defense Lawyers Association and other organizations.  If you are interested in participating in this effort, contact Dan Steen at DSteen@lfcj.com

Following a recommendation from its advisory committee on rules, the Supreme Court of the Virgin Islands, in an order filed on July 14, 2023, amended Virgin Islands Rule of Evidence 702 to align with Federal Rule of Evidence 702.   Thank you to U.S. Virgin Islands lawyer Andrew Simpson, asimpson@coralbrief.com, for reporting on the  amended rule, which is available here.

Wisconsin expert evidence legislation, proposed LRB 3728 and LRB 4653, would statutorily amend Wisconsin’s expert evidence ules to align with amended Federal Rule of Evidence 702.  The Wisconsin Defense Counsel is leading advocacy efforts for the legislation.  Nicole Marklein (Cross Jenks Mercer & Maffei) is leading WDC’s in-state efforts on the legislation and the WDC is represented at the legislature by Rebecca Hogan (Hamilton Consulting).

The draft bill can be read here.

The amendment clarifies Wisconsin’s standard for the admission of expert witness testimony: 

1. The trial court must determine the admissibility of expert evidence by employing Wisconsin’s statutory expert evidence standards.
2. The proponent of expert testimony has the burden of establishing the admissibility of expert evidence by a preponderance of the evidence
3. The court’s gatekeeping responsibility is ongoing—the court’s decision to admit proffered testimony does not allow the expert to ultimately offer an opinion that is not meet Rule 702’s standards.

The bill sponsors, Senator Van Wanggard and Rep. Brent Jacobson, are seeking legislator co-sponsors.  Your support is needed to help secure additional co-sponsors for the bills. 

For more information or to participate in the Wisconsin Working Group advocating for the bills, contact Dan Steen, DSteen@lfcj.com, or Nicole Marklein at nmarklein@cjmmlaw.com.